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  • FIRST POST
    • JustThisGuyYouKnow
    • By JustThisGuyYouKnow 11th Sep 17, 9:23 PM
    • 7Posts
    • 4Thanks
    JustThisGuyYouKnow
    ParkingEye, Tower Road - again.
    • #1
    • 11th Sep 17, 9:23 PM
    ParkingEye, Tower Road - again. 11th Sep 17 at 9:23 PM
    Hi,

    ParkingEye recently sent a POFA 2012 PCN to me as the registered keeper of a vehicle recorded entering Tower Road and leaving shortly afterwards. The vehicle did not park as there were no spaces available and no ticket was purchased. I've read the sticky and am about to appeal as the keeper using the BPA template, I just wanted to check if adding the below text was too much at this stage and should I leave this detail for the POPLA appeal?

    On the day in question, the driver could not find an available parking space and as soon as was practical, left the car park. Your APNR cameras appear to only register the time entering and leaving the site and do not capture the vehicle parked, because as stated on behalf of the driver it wasn’t; as per 3JD08399 ParkingEye v Ms X. (Altrincham 17/03/2014) time spent within a car park looking for a space, cannot be considered as time parked, also during the aforementioned case your representative Mr Langham stated “Parking Eye operates a fair and reasonable grace period that allows motorists to enter and exit the car park.”; as the keeper of the vehicle and being familiar with driving vehicles of such size I would argue that on such a busy August bank holiday weekend less than XXX full minutes would be considered well within such a grace period considering the time required for the driver to carefully navigate the narrow access lanes within the car park whilst avoiding collisions with parked vehicles or pedestrians with pushchairs, surfboards and other unwieldy items as well as the extra time required to allow for additional vehicles entering the site via the extremely narrow and congested exit onto the highway.

    As such, I believe that clause 13.1 and 13.2 of the BPA Code of Practice applies and will be featured in any future appeal or court defence, as well as other legal arguments including but not limited to questions around compliance with your KADOE contract with the DVLA; given that no contract was entered into by the driver, you appear to have no probable cause to request the details of the vehicles keeper from the DVLA.
    Many thanks to everyone on the board here for all the help and guidance, I was considering just ignoring this PCN as I'd read was possible in the past. I'm so glad I came here for help first. Apologies for creating another post.
Page 1
    • Redx
    • By Redx 11th Sep 17, 10:15 PM
    • 16,570 Posts
    • 20,724 Thanks
    Redx
    • #2
    • 11th Sep 17, 10:15 PM
    • #2
    • 11th Sep 17, 10:15 PM
    seems ok to me , the main thing is to not identify the driver at any point

    appeal on their website as KEEPER

    and please note , IGNORING would have been VERY foolish

    good luck

    ps:- if it has too many characters for the appeal box, cut it down
    Last edited by Redx; 11-09-2017 at 10:20 PM.
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • Coupon-mad
    • By Coupon-mad 12th Sep 17, 1:27 AM
    • 51,553 Posts
    • 65,161 Thanks
    Coupon-mad
    • #3
    • 12th Sep 17, 1:27 AM
    • #3
    • 12th Sep 17, 1:27 AM
    you appear to have no probable reasonable cause to request the details of the vehicles keeper from the DVLA.
    The rest looks fine.

    Did the PCN arrive by day 14 and does it have the POFA paragraph in the middle on the back?
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • JustThisGuyYouKnow
    • By JustThisGuyYouKnow 12th Sep 17, 11:31 AM
    • 7 Posts
    • 4 Thanks
    JustThisGuyYouKnow
    • #4
    • 12th Sep 17, 11:31 AM
    • #4
    • 12th Sep 17, 11:31 AM
    Thanks both.

    To confirm, NTK arrived within the 14 day window and does have a POFA section.
    • JustThisGuyYouKnow
    • By JustThisGuyYouKnow 10th Oct 17, 7:52 PM
    • 7 Posts
    • 4 Thanks
    JustThisGuyYouKnow
    • #5
    • 10th Oct 17, 7:52 PM
    • #5
    • 10th Oct 17, 7:52 PM
    Hi all,

    So, predictably PE have rejected my appeal.

    Was going to go to POPLA with:

    Dear Sir / Madam,

    POPLA Reference XXXXXXXXX
    Incident date XXXXXXXXX
    Car registration XXXXXXXXX
    PCN Number XXXXXXXXX
    Operator Name PARKINGEYE

    I am writing to challenge a parking charge notice received for parking at the Tower Road, Newquay car park on XXXXXXXXX.

    To protect the driver, they have not been named.

    My appeal as the registered keeper is as follows:
    1: Insufficient observation or grace periods
    2: No Contract was entered into between the Parking Eye and the Driver or Registered keeper
    3: No evidence of Landowner Authority
    4: Inadequate signage.


    1. No period of observation or grace was provided for the driver to read the additional signs within the car park, fail to locate a parking space and to exit the car park once it was apparent that there were no available spaces.

    During the particularly busy bank holiday weekend, the driver entered the car park and circled looking for an available space; none were available. The driver then communicated with the driver of another vehicle where an alternative car park location was discussed and the driver decided to leave the Tower Road car park without parking. Both vehicles then drove to the alternative car park and purchased parking for the remainder of the day.

    Photographs taken and provided by Parking Eye only show the time of entry into and exit from the Tower Road car park but do not show the vehicle parked; because it didn’t. With a total time of less than 11 minutes within the car park it is clear that the operator has not allowed for suitable observation and grace periods as per the BPA code of practice.

    The BPA Code of Practice (13.2) states that parking operators "should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission, you should still allow them a grace period to read your signs and leave before you take enforcement action."

    Kelvin Reynolds, Head of Public Affairs and Policy at BPA states that:

    ‘There is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this.

    “An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket,” he explains.

    “No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”

    The BPA’s guidance defines the ‘grace period’ as the time allowed after permitted or paid-for parking has expired but before any kind of enforcement takes place.

    Kelvin continues: “In the instance of a PCN being issued while a ticket is being purchased, the operator has clearly not given the motorist sufficient time to read the signs and comply as per the operator’s own rules. If a motorist decides they do not want to comply and leaves the car park, then a reasonable period of time should be provided also.”’

    In addition, the BPA Code of Practice (13.4) states that the parking operators “should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”
    For the avoidance of doubt, the second 'grace' period of at least ten minutes (not a maximum, but a minimum) is in addition to the separate, first grace/observation period that must be allowed to allow the time taken to arrive, find a parking bay, lock the car and go over to any machine to read & observe the signage terms, before paying.

    It should be noted that on this particular day, in the middle of the day on a very busy August Bank Holiday weekend, there were significant delays caused by pedestrians with surf boards as well as families with pushchairs and small children. The vehicle driven was a XXXXXXXXXX and such a large vehicle required significant care and attention to navigate the extremely narrow lanes of this car park without causing damage to either the vehicle in question, other parked vehicles, the other vehicles still attempting to enter the site as well as the aforementioned pedestrians. The driver also had to give way to those cars newly arriving as the car park route narrows as you pass parked cars on both sides, additional care and attention was required at the exit before the vehicle could safely rejoin the main road (which is extremely busy, being the route to Fistral Beach). Given the above as well as the size and complex layout of the car park with it’s numerous choke points, an ordinary independent person assessing the facts would certainly consider it reasonable that it required more than 10 minutes to discover that no parking spaces were available and for the vehicle to exit the car park.

    In this case there was nothing on the signs at the entrance or anywhere seen, that informed the driver that the timing could possibly start at the point of entry and it is noted that the 'exit' ANPR camera records the VRN only when at the very front/actually exiting onto the road, despite the fact this is a main road where a car cannot possibly turn straight out immediately even if there is no queue (which the driver confirms that there was).

    It is clear from all of the above that ParkingEye have failed to allow the mandatory MINIMUM “Observation” and “Grace" periods as set out in the BPA Code of Practice. Adequate time must be allowed and these would differ from site to site, allowing for the issues mentioned above which are specific to a busy beach car park adjacent to a main road.

    2. ParkingEye clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for people to unwittingly fall outside the terms of said contract. It is not reasonable for a car park such as this to have such a limited amount of signs and rely on drivers to look carefully for where and how the terms are displayed. It is surely the responsibility of ParkingEye Ltd to make the terms of their contract far clearer so that drivers have no doubt whatsoever of any supposed contract they may be entering into. I require ParkingEye Ltd to provide evidence as to how clear the terms and conditions are and consider if the methods used are clear enough for this type of car park. I would specifically like them to look into how clear the signs are that inform drivers that ANPR cameras are in use on this site.

    Furthermore a contract can only be considered to be entered into if enough evidence exists that it actually happened. For a contract to have been entered into the driver would have had to get out of the car, read the signs, fully interpret and understand them and then agree to them, which would be indicated by the driver purchasing a ticket and / or parking in a space. The case of ParkingEye v Beavis and Wardley [2014], proves particularly beneficial when considering the creation of a contract with the driver. Here it was stated that, “it is well established that a valid contract can be made by offer, in the form of terms and conditions set out on the notice, and acceptance, in the form of one’s car in the space provided [...] any unequivocal act of acceptance will suffice, and the signs clearly state (as anyone would expect nowadays) that parking constitutes acceptance.”

    In this instance, the vehicle did not park and at no time entered a parking space. The only ‘evidence’ provided by Parking Eye is of the vehicle entering and shortly afterwards, exiting the car park; neither of which the driver disputes however, the driver absolutely denies “parking” the vehicle and has offered an explanation for the time period in question. As per 3JD08399 ParkingEye v Ms X. (Altrincham 17/03/2014) time spent within a car park looking for a space, cannot be considered as time parked; therefore it cannot be stated as fact that the driver of the vehicle accepted the Terms and Conditions of any contract offered.

    I request that ParkingEye Ltd provide concrete evidence that a contract existed between themselves and the driver on the day in question, which meets all the legal requirements of forming a contract. They should include specific things including, agreement from both parties, clarity and certainty of terms etc. If they are not met then the contract would be deemed “unfair” under the Unfair Terms in Consumer Contract Regulations 1999.

    3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

    As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

    Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.
    Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

    Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

    7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

    7.3 The written authorisation must also set out:

    a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

    b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

    c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

    d) who has the responsibility for putting up and maintaining signs

    e) the definition of the services provided by each party to the agreement


    4. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

    There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

    In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only.

    In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

    This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

    Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

    It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

    This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

    ''The signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

    From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

    ''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

    ''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

    ''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

    So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

    Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

    (1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
    (2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

    The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

    This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case.

    This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

    I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

    Therefore, it is respectfully requested that this parking charge request appeal be upheld on every point.

    Yours faithfully,
    .

    What do folks think?
    Last edited by JustThisGuyYouKnow; 10-10-2017 at 8:06 PM.
    • Umkomaas
    • By Umkomaas 10th Oct 17, 9:02 PM
    • 15,561 Posts
    • 24,284 Thanks
    Umkomaas
    • #6
    • 10th Oct 17, 9:02 PM
    • #6
    • 10th Oct 17, 9:02 PM
    Quick scan - looks ok and you’ve detailed the specific timings relating to the grace period.

    You need to put a header over each appeal point section, mirroring the bullet point list from the start of your appeal.

    Why have you not included the following appeal point (from the NEWBIES FAQ sticky, post #3)?

    The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • JustThisGuyYouKnow
    • By JustThisGuyYouKnow 11th Oct 17, 2:59 PM
    • 7 Posts
    • 4 Thanks
    JustThisGuyYouKnow
    • #7
    • 11th Oct 17, 2:59 PM
    • #7
    • 11th Oct 17, 2:59 PM
    Must admit, didn’t think it was as relevant as the contract stuff given they sent a POFA compliant form within the timelines required. I guess the point I can try to make with POPLA is that as no contract was formed, there was no reasonable cause to approach the DVLA... but Parking Eye don’t seem to believe that is an issue.

    Re-reading a lot of this stuff, I've removed the section on keeper liability as their initial NtK was within the 14 day period and looks to be POFA compliant.

    I've reworded the section on contract:
    No Contract was entered into between Parking Eye and the Driver or Registered keeper

    ParkingEye clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for people to unwittingly fall outside the terms of said contract. It is not reasonable for a car park such as this to have such a limited amount of signs and rely on drivers to look carefully for where and how the terms are displayed. It is surely the responsibility of ParkingEye Ltd to make the terms of their contract far clearer so that drivers have no doubt whatsoever of any supposed contract they may be entering into. I require ParkingEye Ltd to provide evidence as to how clear the terms and conditions are and consider if the methods used are clear enough for this type of car park.



    Furthermore a contract can only be considered to be entered into if enough evidence exists that it actually happened. For a contract to have been entered into the driver would have had to get out of the car, read the signs, fully interpret and understand them and then agree to them, which would be indicated by the driver purchasing a ticket and / or parking in a space. The case of ParkingEye v Beavis and Wardley [2014], proves particularly beneficial when considering the creation of a contract with the driver. Here it was stated that, “it is well established that a valid contract can be made by offer, in the form of terms and conditions set out on the notice, and acceptance, in the form of one’s car in the space provided [...] any unequivocal act of acceptance will suffice, and the signs clearly state (as anyone would expect nowadays) that parking constitutes acceptance.”

    

In this instance, the vehicle did not park, at no time entered a parking space, the engine was continually running and the occupants did not leave the vehicle. 



    The only ‘evidence’ provided by Parking Eye is of the vehicle entering and 10 minutes later exiting the car park; neither of which the driver disputes however, the driver absolutely denies “parking” the vehicle and has offered an explanation for the time period in question (i.e the car park was full, no spaces were available and as a result the vehicle left the car park as soon as was possible).

    

As per 3JD08399 ParkingEye v Ms X. (Altrincham 17/03/2014) District Judge Hayes determined that time spent within a car park looking for a space, cannot be considered as time parked.

    

In that case District Judge Hayes stated:



    “It seems to me a customer who enters that car park, cannot find a space and leaves the car park is not aware that if they are doing that for more than 20 minutes they are liable to a charge.”



    ...and ...

    “…I am not satisfied that it was clear to the Defendants that by parking or entering or remaining within the area covered by Parking Eye Ltd they were liable for a charge, that the signage does not make that clear in my view unless one gets out of the car, walks up to it, by which point it seems to me one would be parked”;



    as the driver neither purchased a ticket nor did the vehicle park, it cannot be stated as fact that the driver of the vehicle accepted the Terms and Conditions of any contract offered and therefore the driver cannot be held in breach. 


    I request that ParkingEye Ltd provide concrete evidence that a contract existed between themselves and the driver on the day in question, which meets all the legal requirements of forming a contract. They should include specific things including, agreement from both parties, clarity and certainty of terms etc. If they are not met then the contract would be deemed “unfair” under the Unfair Terms in Consumer Contract Regulations 1999.
    ... and I've also added two sections on the use of APNR, in case it was worth trying...

    ANPR Signage Requirements

    

The signs fail to transparently warn drivers what any ANPR data gathered will be used for, which breaches the BPA CoP and the CPUTRs due to inherent failure to indicate the 'commercial intent' of the cameras.

    

Paragraph 21.1 of the British Parking Association Code of Practice (CoP) advises operators that they may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. The CoP requires that car park signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for.



    A symbol of a camera is not sufficient to inform the driver that this system is in place as this could easily be mistakenly taken as a sign that CCTV is in operation for security purposes. In addition the acronym ANPR is also not sufficient as no prior knowledge of the system can be assumed and the signage must be easily understandable. It is not clear that the cameras are not for security but are there in order to calculate 'total stay'.



    ParkingEye signs do not comply with these requirements because these car park signage failed notify the driver what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law. Specifically missing (or otherwise illegible, buried in small print) is the vital information that the driver's arrival time would be calculated from a point in time on the road outside the car park.

    

In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms.



    This is confirmed within the Consumer Rights Act 2015 including: Paragraph 68: Requirement for Transparency:



    LINK REMOVED

    A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

    

(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

    

and Paragraph 69: Contract terms that may have different meanings: (1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.



    Withholding material information from a consumer about the commercial (not security) purpose of the cameras would be considered an unfair term under The Consumer Protection from Unfair Trading Regulations 2008 (CPUTRs) because the operator 'fails to identify its commercial intent’:



    LINK REMOVED

    Misleading omissions: 6.1 A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—
    
(a) the commercial practice omits material information,
    
(b)the commercial practice hides material information,
    
(c)the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or

    (d)the commercial practice fails to identify its commercial intent, unless this is already apparent from the context, and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.


    ANPR and Signage Planning Permission.

    

It is the appellant’s belief that no planning permission under the Town and Country Planning Act 2007 for the ANPR equipment or advertising consent for the signage has been sought by the operator. Parking Eye are put to strict proof that the required permissions have been granted by the relevant local authority for this site.

    

In order to access keeper data the operator must be a member of an approved trade association in this case the British Parking Association, and must abide by their code of practice.



    BPA COP version 6 section 3 paragraph 4.3 states; Under the Code you must keep to all the requirements laid down by law. The Code reflects our understanding of the law at the date of publication. However, you are responsible for familiarising yourself with the law on any activities covered by the Code.



    The compliance with the COP was further underpinned by the Judges in the Supreme Court case Parking Eye v Beavis.

    

It is well known within the public domain that Parking Eye routinely do not apply for the relevant planning or advertising consent for their signs and equipment in many car parks around the country. Lack of advertising consent is a criminal matter and as such, under common law no person should benefit who founds his cause of action on an illegal act. If no planning or advertising consent has been sought by Parking Eye, then any signs are illegal and therefore incapable of forming a contract.
    ... any comments gratefully received.
    Last edited by JustThisGuyYouKnow; 12-10-2017 at 4:49 PM. Reason: Changed piece on Keeper Liability
    • JustThisGuyYouKnow
    • By JustThisGuyYouKnow 21st Nov 17, 1:27 PM
    • 7 Posts
    • 4 Thanks
    JustThisGuyYouKnow
    • #8
    • 21st Nov 17, 1:27 PM
    • #8
    • 21st Nov 17, 1:27 PM
    HI all,

    Just to follow up... I didn't want to give too many details originally as advised but this was actually two challenges against ParkingEye for two vehicles that were in convoy and had been in the car park for less than 12 minutes (1 vehicle was 11 mins 25 sec, the other 10 mins 42 sec).

    Just had POPLA results through for both... the first was SUCCESSFUL on the grounds that ParkingEye failed to provide any evidence of Landowner Authority... however, when sending through the second evidence pack (which was sent through over a week later than the first) there was the generic Witness Statement template rubbish in it... meaning I knew we were on more of a fight for the second one.

    However, second case result came through today as also SUCCESSFUL on the grounds that ParkingEye failed to observe the BPA CoP on Grace Periods. The POPLA assessor did call out that we'd provided as a receipt from an alternative car park as additional evidence that we didn't park, however seems the Grace Period alone was enough.
    By seeking alternate parking arrangements, the appellant has demonstrated that he did not accept the conditions of the parking contract.
    Thanks everyone for sharing their advice and experience on here... appreciate all the help.
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